Eisenmenger v Lutheran Church of Australia, Queensland District [2005] QIRC 25 (2005) 178 QGIG 203

[Extract from Queensland Government Industrial Gazette, dated 11 March, 2005, Vol. 178, No.10, pages 203-213] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Raymond Alan Eisenmenger and Lutheran Church of Australia, Queensland District (No. B1662 of 2003) COMMISSIONER FISHER 2 March 2005 Application for reinstatement – Alleged unnecessary physical contact with student(s) – Previous unblemished record – Three allegations – Discrepancies in evidence – Allegation 1 found – Absence of corroborating evidence regarding allegation 2 – Allegation 2 not sustainable on balance of probabilities – Allegation 3 not sustainable – Psychologist and Psychiatrist report finds no evidence of anger management deficiencies – Alleged procedural unfairness – Investigation process flawed – Lack of objectivity in decision makers – Not all information before decision makers – Independent review and terms of reference established – Findings of the independent review disregarded – Procedural unfairness found – Jurisdiction – Respondent alleges no employment relationship – Case law – Structure of Lutheran Church – Separation of secular and religious duties – Employment relationship found – Dismissal found unfair – Remedy – Parties to confer on a mutually acceptable resolution and provide written advice within 22 days of release of decision – Commission chaired conference available on request – Matter will be relisted for hearing further argument regarding remedy if the parties cannot agree – Commission recommends applicant undertake professional development course in classroom behaviour management to assist the process. DECISION This is an application by Raymond Eisenmenger seeking reinstatement as Pastor and School Chaplain at St Peter’s Lutheran College (SPLC) Indooroopilly. The Lutheran Church of Australia Queensland District (LCAQD), which is named as the respondent, opposes the application on two grounds. While contending no substantive or procedural unfairness attached to the loss of the appointment held by Paster Eisenmenger at SPLC, the primary argument in opposition to the claim was one of jurisdiction. LCAQD contend that the relationship between Pastor Eisenmenger and itself is not one of employment and consequently Pastor Eisenmenger is not a person who can be dismissed or seek a remedy pursuant to the unfair dismissal provisions of the Industrial Relations Act 1999 (the Act). The terminology used by the Lutheran Church in relation to the appointments within the Church is that of a “call”, that is a Pastor (and certain others) are considered for a call, or appointment, to a parish, school or other Church entity. A Pastor is then offered, or not, as the case may be, a call to that parish, school or other Church entity. In the circumstances of this case Pastor Eisenmenger received and accepted a call as chaplain to SPLC in July 1992. Until the question of jurisdiction is resolved I shall use the terms “appointment” to refer to a call and “position” to refer to the role of Pastor and Chaplain at SPLC. Pastor Eisenmenger Pastor Eisenmenger initially trained as a teacher at the Kelvin Grove Teachers College (as it then was) in the early 1960s. On completion of his training he was employed by the State Education Department for several years. In 1970 Pastor Eisenmenger worked as a teacher for the Lutheran Church at the Hopevale Mission. The following year Pastor Eisenmenger commenced studies for the ministry in the Lutheran Church. Pastor Eisenmenger spent five years in the Seminary and was ordained as a Pastor in 1976. He was first called to a parish in Dalby, then to a parish in New Zealand and later to another parish in Queensland. In July 1992 he was appointed as Pastor and Chaplain at SPLC. In that position, Pastor Eisenmenger performed religious functions for the school but the substantial portion of his time was spent in teaching and associated duties, such as lesson preparation and assessment of students. Pastor Eisenmenger also participated in extra curricular activities, acting as a cricket coach and cricket co- ordinator. Pastor Eisenmenger had an unblemished record at SPLC until November 2002. The events of that month led to the termination of Pastor Eisenmenger’s position at SPLC. He continued to receive the remuneration he received whilst at SPLC until the end of August 2003. Since that time Pastor Eisenmenger has remained on the roll of Pastors but has not received another call. Substantive and Procedural Issues Before dealing with the jurisdictional argument, the matters of procedural and substantive fairness shall be considered. On 27 November 2002 Pastor Eisenmenger received an email from the Head of College, Sally Chandler, asking him to attend a meeting later that day. At that meeting he was handed a letter advising him that a meeting was to be held the -- 1 of 15 -- 2 following day at which Sheridan Webcke from Lutheran Education Queensland (LEQ) would be present and that the purpose of the meeting was to discuss alleged physical contact with a student. The letter also informed him that he could bring a friend or colleague for support. Pastor Eisenmenger attended the meeting on 28 November 2002 with Irene Dunn, President of the Queensland Independent Education Union of Employees and member of the SPLC teaching staff. Michael Hennessy, Deputy- Curriculum and Head of Senior School, was present at the meeting along with Ms Chandler and Ms Webcke. Pastor Eisenmenger was advised that the incident of alleged physical contact came to the attention of Ms Chandler via a parent (not the parent of the student involved) following a College Council Finance Committee meeting. The issue had been discussed at a subsequent College Council meeting and Ms Chandler was asked to follow up the incident. No written request or complaint had been made by the student or his parent(s). Despite the complaint not being raised formally, the Head of LEQ, Dr Roger Hunter, and the President of LCAQD, Pastor Tim Jaensch, had both been contacted about the matter. In addition to the allegation of alleged physical contact, two other allegations were made known at the meeting. One concerned a student who was allegedly punched by Pastor Eisenmenger and the other concerned inappropriate aggressive outbursts in front of students. Pastor Eisenmenger was given the opportunity to respond in writing to all allegations by 5 December 2002. However, before Pastor Eisenmenger had an opportunity to respond, he received written advice from Ms Chandler that the College was initiating a formal review for unsatisfactory performance based on the two allegations of inappropriate physical contact with students. The letter informed Pastor Eisenmenger that the College was satisfied, based on an appropriate investigation, that there was sufficient substance to the allegation of unsatisfactory performance and thus the College was obliged to initiate the formal review process. Pastor Eisenmenger, again accompanied by Ms Dunn, met with Ms Chandler, Ms Webcke and Mr Hennessy on 5 December 2002 to discuss his responses. After some discussion, Ms Webcke advised that the matter would be referred to the Church, effectively removing SPLC from any further involvement in the matter. On 23 December 2002 the Executive of LCAQD Church Council met and considered the allegations against Pastor Eisenmenger. The Executive decided to focus on the alleged physical contact and not the allegations of the punch or aggressive outbursts. Pastor Eisenmenger was given the opportunity to attend the meeting and provide an explanation. Being dissatisfied with the explanation, the Executive decided that Pastor Eisenmenger posed a risk to students and should not be in a classroom. Although Pastor Eisenmenger’s position at SPLC was not terminated at that time, he did not return to his position at SPLC. His position was subsequently terminated on 22 January 2003. Substantive Issues Three allegations were levelled against Pastor Eisenmenger. The text of the allegations is taken directly from the letter from Ms Chandler to Pastor Eisenmenger informing him that a performance review was being initiated. For the purposes of protecting the identity of the students involved as all remain minors, only their initials will be used. Because the parents of some of the students also became involved, again only their initials will be used to ensure the students’ identities are protected. Allegation 1 “Inappropriate aggressive physical handling of a student This claim relates to alleged physical aggression towards a student, AB, which occurred during period 5 in the middle school library on or about 8 or 15 November 2002. It is alleged that you grabbed the student in an aggressive manner on both shoulders, lifted him from the floor, shook him, then grabbed him by the back of the neck, squeezed tightly and sat him into a chair.”. This is the main allegation that was made against Pastor Eisenmenger. On 8 November 2002, the student, AB, accompanied by another student, CH, reported to Wayne Gauld, Head of Middle School, that he had been grabbed by the neck by Pastor Eisenmenger who had shaken him and then pushed him into his chair. The student said he had been asking other students for lead for his Pacer pencil when the incident occurred. He conceded that he had probably been distracting the class. -- 2 of 15 -- 3 When interviewed by the College Marshal, Gerard Johnston, in the presence of Mr Gauld on 27 November 2002, the student again stated that he had been seeking to borrow lead for his pencil. He alleged that when he returned to his chair Pastor Eisenmenger chastised him for wandering around then grabbed him on both shoulders and lifted him approximately one foot off the floor. While he was held off the floor, Pastor Eisenmenger shook him a couple of times then put him back on the floor. AB said Pastor Eisenmenger then grabbed him by the back of the neck and squeezed tightly, sat him into a chair, let go of his neck then pushed him and his chair into the desk. Mr Johnston, in the presence of Mr Gauld, interviewed five other Year 8 students. Two of those could not supply any relevant information. The other three supplied varying accounts of the alleged incident, viz.:  that Pastor Eisenmenger grabbed AB by the back of the neck and shook him a couple of times. This occurred in the context of AB and another student playing on the computer chairs and AB trying to get an encyclopaedia from another student;  that Pastor Eisenmenger lifted AB out of the chair holding both shoulders. Pastor Eisenmenger then shook AB a couple of times and let him go. This student, GW, did not see whether AB was lifted off the floor, grabbed by the back of the neck or the Pastor push AB into a desk. GW said the incident occurred in the context of AB and him mucking around on computer chairs;  that when AB attempted to stand up Pastor Eisenmenger told him to sit down. When he did not obey, this student, MB-V, said Pastor Eisenmenger put his hands on AB’s shoulders to force him back into the chair. Pastor Eisenmenger then grabbed AB on the back of the neck and shook him a couple of times. In the report Mr Johnston provided to Ms Chandler he concluded: “In relation to the AB incident, it would appear that Pastor Eisenmenger did use some form of physical contact when dealing with A. it (sic) does not appear that the amount of force or nature of delivery, can be supported from the information of the witnesses available . . . Allowing for the age of the students, the fact that the incidents occurred a couple of weeks ago, the discrepancies of the statements do not rule out the fact that some form of unwelcome contact was made by Pastor Eisenmenger against a student in his care.”. The student directly involved in the alleged incident as well as two of the other three students who provided information to Mr Johnston gave evidence to the Commission. In this setting the evidence was much more detailed than the information provided to Mr Johnston and fleshed out their earlier statements. The most notable addition to the description of the alleged incident was given by AB who said that approximately two minutes elapsed while Pastor Eisenmenger had him lifted off the ground and shaken him. Other than that, the students’ evidence was broadly consistent with the information given to Mr Johnston. The explanation given by Pastor Eisenmenger is markedly different to that given by any of the students. He confirmed that some physical contact initiated by him occurred during a Year 8 Christian Studies lesson in the library. While he always acknowledged coming into physical contact with AB, Pastor Eisenmenger maintained that such contact was necessary to ensure the student’s safety. He said that the incident occurred when the student was sitting cross-legged on a computer chair that was raised slightly higher than the other chairs at the desk. AB was reaching across the desk, haggling with another student to obtain an encyclopaedia. Pastor Eisenmenger said he took hold of AB’s arm (between the shoulder and the elbow with one hand) to restrain him and to prevent him from falling off the chair. During the time Pastor Eisenmenger held his arm, AB tried to pull away from him. Pastor Eisenmenger said he could not safely let go of his arm while he was trying to pull away so he held it until he judged it safe to let go. After AB reported the incident to Mr Gauld on the day it occurred, Mr Gauld spoke to Pastor Eisenmenger about it. In his evidence he said Pastor Eisenmenger had said something like “(AB) was moving around the library and I told him to go back to his chair, all I did was grab him by the shoulders and put him in his chair.”. Mr Gauld gave evidence that he was unaware of the explanation provided by Pastor Eisenmenger as set out above and that the matter of the student’s safety had not been raised by Pastor Eisenmenger at the time. Except for the explanation given to Mr Gauld which was not recorded at the time, Pastor Eisenmenger has at all times maintained his version and that the purpose of the physical contact was for safety reasons. He consistently denied the allegations of lifting the student off the ground and shaking him. Several difficulties arise in attempting to resolve what happened. Although AB reported the incident to Mr Gauld, on the day in question no notes of the report were taken. Mr Gauld, in evidence, readily acknowledged his error. He said the (male) student was not distressed about the incident and he had spoken to Pastor Eisenmenger shortly after who said he would apologise to the student and contact the parents of the boy. Interviews with the student concerned and six of the other students only occurred after the incident came to light following the matter being raised by a parent at a College Council Finance Committee meeting and the subsequent discussion at the College Council meeting. The delay between the time of alleged incident and the interviews meant -- 3 of 15 -- 4 that the recollections of those involved were not as clear as if interviews had been held and notes taken contemporaneously. An added difficulty arises in that evidence was given to the Commission two years after the incident was alleged to have occurred. This is a long time for any witness to accurately recollect events and is an especially long time in the life of a teenager. The notes of the interviews of the students and the evidence of the students, including AB, to the Commission show that the descriptions of the events that led to the incident itself are not consistent. That the versions were not identical led Pastor Jaensch to conclude that the students were telling the truth and Pastor Eisenmenger was not. Mr Horneman- Wren, who appeared for the respondent, submitted that the evidence of the students should be accepted because “there is no unity concerning the nature of the incident between any of the students and Pastor Eisenmenger” and there was no reason to fabricate the allegation. Mr Murdoch SC, who appeared for Pastor Eisenmenger, submitted that the conflict between the students’ reports and those reports as against the version of Pastor Eisenmenger, should lead the Commission to conclude that this allegation could not be made out. He argued that the Commission should not be left to try to make up a composite from the varying and inconsistent versions. Further, Mr Murdoch submitted that not all people who were present at the time (students and the librarian) were interviewed and accordingly the Commission had incomplete evidence about the matter. Mr Horneman-Wren rejected this submission and said that because the Commission had heard evidence from relevant witnesses, I should make findings on what occurred. The discrepancies between the version of events given by the students and the discrepancies between their versions and that of Pastor Eisenmenger have led me to accept the submission of Mr Murdoch SC that I should not make a composite of what occurred from the various versions. However I consider sufficient evidence has been presented to make findings about whether the contact was necessary. Based on the evidence before me I am satisfied that there was physical contact between Pastor Eisenmenger and the student AB. The evidence from all relevant witnesses supports that conclusion. I think it is inherently unlikely that Pastor Eisenmenger initiated the physical contact because AB was wandering around the class looking for lead for his pencil. It is much more likely that the physical contact occurred in the context of AB reaching across the desk and haggling with another student about an encyclopaedia. None of the evidence from the students supports Pastor Eisenmenger’s version that he acted out of concern for AB’s safety. This together with his omission of this as a reason for his action when speaking to Mr Gauld on the day of the incident leads me to conclude that the contact was not made out of concern for the student’s safety. It seems more likely that Pastor Eisenmenger had become frustrated by the persistent misbehaviour of this student and reacted unwisely by grabbing hold of the student. In that context I think it is probable that the student was grabbed by the shoulders or the back of the neck but it is not possible to be conclusive about the part of the body on which physical contact was made given the difference in the evidence. The reports of the students are broadly consistent in that AB was shaken. The evidence diverges about whether that was by the back of the neck or the shoulders. Pastor Eisenmenger denied that he shook the student at all. Given the general consistency of the students’ reports, I believe that is more likely than not that AB was shaken but that there was little force employed as evidenced by the lack of distress shown by the student to Mr Gauld. I also consider that the evidence supports a conclusion that the shaking was momentary and used to focus the student on behaving. I consider the allegation that AB was lifted off the floor is highly improbable given the strength that would be required for such a feat. Pastor Eisenmenger is not a big man and even allowing for AB’s slightness I think it inherently unlikely that Pastor Eisenmenger could have achieved this. For the same reason I reject as physically impossible the student’s assertion that he was lifted off the floor for a minute or two. In my view the whole incident was over very quickly. Finally, I am not satisfied that the term “physical aggression” as used in the allegations by SPLC is warranted. That implies a greater use of physical force than I believe to have been employed and I consider such a description to be an exaggeration. Accordingly I am satisfied that Pastor Eisenmenger initiated physical contact against the student AB. Further, I accept that such contact was inappropriate and unnecessary in the circumstances. I am also of the view the incident was over very quickly and was relatively minor. Allegation 2 “Inappropriate aggressive physical contact with a student This claim relates to alleged physical contact with a student, MB, which occurred in M2 classroom on or about 22 November 2002. It is alleged that you grabbed him on the shoulder with one hand and punched him on the upper chest with the other hand.”. -- 4 of 15 -- 5 This allegation came to light when the interviews over the AB incident were taking place. AB told Mr Johnston that another incident with MB may have occurred. Consequently Mr Johnston interviewed MB. In his incident report to Ms Chandler after interviewing MB, Mr Johnston commented that: “With reference to the incident involving MB, going only on the statement of MB it would suggest that an incident of unwelcome physical contact occurred in M2 classroom. Several other students in the class would need to be interviewed to get a clear picture of what occurred.”. Despite Mr Johnston’s suggestion to interview “several other students” only one other was interviewed. The interviews with MB and the other student confirmed the punch had occurred. They also said that Pastor Eisenmenger yelled, “shut up”. MB said he had told his parents of the incident but they told him not to talk to other students in class. Pastor Eisenmenger has consistently denied the allegation. He said no such event occurred. Mr Gauld had the opportunity on 5 December 2002 to supervise the class normally taken by Pastor Eisenmenger in which the punch was alleged to have occurred. Mr Gauld spoke with the class about the incident and was unable to find any other student who saw the incident happen. Three students approached Mr Gauld in confidence and said that the two boys were good friends and often played up in class. While they acknowledged Pastor Eisenmenger often shouted at students for misbehaviour, they could not believe Pastor Eisenmenger would punch a student. Mr Gauld conveyed this information in a letter to Ms Chandler on 5 December 2002. It would seem that Ms Chandler received this information after the decision had been made to refer the issues involving Pastor Eisenmenger to LCAQD. As a consequence no follow up or indeed any action was taken in respect of Mr Gauld’s letter. Nor was it forwarded to LCAQD. MB gave evidence to the Commission. His evidence confirmed his description of the incident given to Mr Johnston. The other student was not called to give evidence. Neither were MB’s parents. In his evidence Pastor Eisenmenger denied the allegation and repeated that the incident simply did not occur. Mr Horneman-Wren urged me to accept the evidence of MB in preference to that of Pastor Eisenmenger which he described as “pure dishonest fiction” because of his absolute denial of the incident. The Commission is left to try to resolve the differences between the evidence of one witness who asserts that Pastor Eisenmenger punched him while the alleged perpetrator denied absolutely that there was any incident at all. Direct evidence from the witness to the alleged incident was not called and there was no explanation for that omission. That witness was a good friend of MB and was also misbehaving at the relevant time. Evidence was also not called from MB’s parents to whom MB said he reported the incident. I am aware that subsequent to the termination of Pastor Eisenmenger’s position the new Head of College, Mr Rudolph, interviewed MB and was satisfied that the incident occurred. Against all of this is the evidence of Pastor Eisenmenger denying the incident and the report from Mr Gauld who spoke to the remainder of the class and who saw no such incident. What is being alleged against Pastor Eisenmenger is an assault, a criminal matter. The standard of proof of criminal conduct in an unfair dismissal case is on the balance of probabilities but the seriousness of the alleged conduct must guide the Commission in its assessment of the evidence and the degree of probability required. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Mason CJ, Brennan, Deane and Gaudron JJ said: “The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter sought to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious as matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”. The absence of any corroborating evidence, and indeed the failure on the part of the respondent to call any corroborating evidence, when such evidence was apparently available, has dissuaded me from accepting that the incident as alleged occurred. There has simply not been the strength of evidence that is required to be presented in accordance with the decision in Neat for me to find that on the balance of probabilities, Pastor Eisenmenger punched MB. -- 5 of 15 -- 6 Allegation 3 “Inappropriate aggressive outbursts in front of students. This claim relates to students concerns that increasingly you have been having outbursts in the classroom in front of the students causing the students to be fearful of your anger towards them.”. This allegation surfaced at the College Council meeting on 25 November 2002 during the discussion about the incident concerning AB. A member of the College Council, Mrs C, said that her daughter, EC, who was in Pastor Eisenmenger’s Year 9 Christian Studies class, had raised a concern about Pastor Eisenmenger’s anger in class. As a result of this concern being raised Ms Chandler requested Mike Hennessy, the Deputy-Curriculum and Head of Senior School, to talk to EC about her concerns. Mr Hennessy confirmed with EC that she had concerns about Pastor Eisenmenger’s class and then invited her to meet with him to detail those concerns. He asked her to bring any friends who shared her concerns. On 27 November 2002 Mr Hennessy met with EC, ES and another (female) student. The crux of the complaints by EC and ES was that Pastor Eisenmenger yelled in class and became angry. His behaviour was said to have worsened in recent weeks. A record of the meeting was kept. Both EC and ES gave evidence to the Commission. In her evidence, EC, made two allegations that had not been raised in her discussions with Mr Hennessy, viz. that Pastor Eisenmenger had pushed a desk towards a boy (the “desk shoving” incident) and that during a class Pastor Eisenmenger grabbed a boy’s arm and shook him at least twice. ES also raised the desk shoving allegation in her affidavit. While they did not form part of the allegations against Pastor Eisenmenger at any time previously, it was the view of the LCAQD that at least the desk shoving incident should be taken into account by the Commission along with the complaints of anger. In his response, Pastor Eisenmenger pointed out the “vague, generalised and subjective assertions” made it difficult for him to respond. He acknowledged that he spoke quite loudly on occasion but for proper reasons. In his evidence to the Commission Pastor Eisenmenger said he would often raise his voice at some of the boys in the class. He denied the desk shoving incident. Pastor Eisenmenger is quite correct in his assessment that vague, generalised and subjective assertions constitute this allegation. It is not reasonable to expect a person to respond in the absence of any particulars as to time, place and frequency. On Pastor Eisenmenger’s own evidence he acknowledged that he raised his voice at particular students in his class. The evidence from the two students was that they were occasionally fearful of Pastor Eisenmenger’s anger but that such anger was not directed at them. There is no evidence to support the contention that he had increasingly been having outbursts in the classroom. In all, there is a paucity of evidence for the allegation of inappropriate outbursts in front of students to be made in the first place. Having been made, the absence of any particulars and hence the inability to meaningfully respond means that I am not able to properly consider the matter. Accordingly no findings are made against Pastor Eisenmenger in respect of this allegation. In the absence of any direct evidence from the student concerned or investigation of any type into the allegation I am not satisfied that the desk shoving incident occurred. Did the substantive issues warrant termination? Mr Horneman-Wren responded in answer to a question put by the Commission that the three allegations either individually or collectively warranted the termination of Pastor Eisenmenger’s position at SPLC. Because of the findings I have made in respect to each of the incidents the only relevant incident is that of the physical contact with the student AB. I accept that Pastor Eisenmenger acted inappropriately towards AB, however, in my view termination was disproportionate to the incident. After considering the evidence I have concluded that physical contact occurred, that the student was shaken but that the incident did not involve great force and was relatively minor. In reaching the conclusion that termination was disproportionate I consider the evidence of Mr Gauld to be important. Mr Gauld was called to give evidence by LCAQD. I found his evidence to be fair and balanced. Mr Gauld concluded in relation to the reports given to him on the day of the incident that “there was nothing over the top in what Pastor Eisenmenger had done”. Although he relied in part on the advice provided by Pastor Eisenmenger to reach that view, he also reached it based on the report of the student and in light of the absence of distress on the student’s part. Mr Gauld subsequently contacted the mother of the student AB. It was Mr Gauld’s evidence that some explanation was required before the parent identified that she was aware of it. Mr Gauld said that “he had the strong impression that it was something she had moved on from. It was not an issue that was concerning her.”. That the student did not raise it immediately with -- 6 of 15 -- 7 his parents and that his parents did not contact SPLC when eventually told support a conclusion that the incident was not considered to be particularly serious. Of course an incident does not have to be considered serious or reported by a student or his/her parents for the employing authority or this Commission to consider it warranting termination. Incidents can and do come to light by other means as is the case here. What is important is a proper investigation of an allegation when it is made and objective consideration of the facts and issues arising from the investigation into that allegation. That objective consideration has shown that the incident was not as serious as the LCAQD believed it to be. In terms of the second allegation, consideration of the available evidence showed that it could not be sustained and the third allegation was so devoid of particulars that it could not be reasonably considered. Accordingly, a conclusion that Pastor Eisenmenger engaged in a pattern of behaviour warranting removal from the classroom is not justified. Anger Management LCAQD are of the opinion that Pastor Eisenmenger has anger management issues and have proposed to him that he undertake an anger management course going so far as to send him a Centrecare brochure outlining the Men’s Anger Management Program 2004. This program was apparently directed towards men engaging in domestic violence. Pastor Eisenmenger declined to attend the program even though on completion he had been advised by Ms Webcke that the Church would be able to support him for a call to another school. Pastor Eisenmenger declined to attend the program (or indeed any other) on the basis that he did not have an anger management problem. In support of this view Pastor Eisenmenger voluntarily attended three sessions with a psychologist who sent a report to Pastor Jaensch. The psychologist reported that Pastor Eisenmenger managed his anger appropriately and did not need further counselling. Further, Pastor Eisenmenger attended a psychiatrist, Dr Josephine Sundin, as part of the conciliation process relating to the termination of his appointment. Dr Sundin found no evidence that Pastor Eisenmenger had any anger management deficiency and was of the opinion that he did not require any ongoing psychiatric or psychological counselling. From the material before me it is evident that with one exception the persons concluding that Pastor Eisenmenger had anger management issues were not teachers – Pastor Jaensch, Ms Webcke, Mrs C, and the Chair of College Council. From a non-teaching perspective that anger is the source of Pastor Eisenmenger’s problems may be the only conclusion to reach. In my view, even though it was detrimental to his position, Pastor Eisenmenger was right to consistently deny that he had anger management issues. What the evidence clearly shows is that Pastor Eisenmenger had difficulties in managing classroom behaviour. This seemed to strike Mr Hennessy in the formal interview with Pastor Eisenmenger on 5 December 2002 and was apparent to the new Head of College, Stephen Rudolph. It is of concern that Ms Chandler did not recognise the problem as a teaching issue and that Pastor Eisenmenger did not identify the problem himself. Certainly, on 5 December 2002 Pastor Eisenmenger indicated he would be prepared to consider being supervised but did not openly acknowledge that a problem with his classroom behaviour management existed. Had the matter been properly identified and addressed in 2002, then it is unlikely that any of the issues associated with Pastor Eisenmenger would be being debated more than two years after the event. Procedural Issues Pastor Eisenmenger has alleged procedural unfairness in relation to the processes adopted that led to the termination of his position and subsequent reconsideration of his position by LCAQD. In response LCAQD, while not conceding that the provisions of the Act applied, contend that the requirements of s. 77(c) were nonetheless met by them. This section provides that where the dismissal was for a reason related to conduct, capacity or performance, the employee was given the opportunity to respond to allegations against them. I accept that Pastor Eisenmenger was given the opportunity to respond to the allegations against him. He was given the opportunity to respond in writing and orally. He took up those opportunities. While the technical requirements of the Act were met there were many aspects to the consideration of the allegations against Pastor Eisenmenger that resulted in procedural unfairness. That conclusion is reached primarily because the process was not clear, transparent or objective. At the SPLC Council meeting on 25 November 2002, the Council Chair, Dr Darryl Muller, advised that a parent (of a classmate of AB) had raised a concern about Pastor Eisenmenger coming into physical contact with a student. Another member of College Council, Mrs C, said that her daughter had raised a concern about Pastor Eisenmenger’s anger in class. Although no formal direction was given to Ms Chandler, she was asked to look into the matters. It is apparent that Dr Muller considered the allegations to be serious and proven as the next day he telephoned Pastor Jaensch, the President of the LCAQD, and advised him amongst other things that Ray Eisenmenger had “physically assaulted a student”, he has a “history of verbal abuse” and Mrs C’s daughter is “frightened of Ray”. -- 7 of 15 -- 8 It is worth noting that pursuant to the LCAQD By-Laws, the College Council reports directly to the District Church Council (DCC) of the LCAQD through Lutheran Education Queensland and yet Dr Muller bypassed LEQ and went directly to the DCC. It was left to Pastor Jaensch to contact Dr Hunter of LEQ. I accept that Dr Muller may have considered he had a responsibility to the Church to alert Pastor Jaensch to the existence of the allegations against a pastor, however, in my view, the initial point of contact should have been with LEQ as required by the LCAQD Constitution and By-Laws. Had the proper processes been followed Dr Hunter could then have discussed with Pastor Jaensch whether the matter should be handled by the Church, LEQ or SPLC and what the procedure ought to be. Further, had the proper processes been initially followed then later confusion about the process could have been avoided and claims of lack of transparency would not have arisen. The College Council was apparently clear that the allegations should be investigated by the College as seen by its request to Ms Chandler to look into the allegations. That decision would have been appropriate had the College Council simply wanted to gather some more information before notifying LEQ or LCAQD of the allegations. But to commence an investigation without first clarifying the proper process to be followed and having condemned the conduct of Pastor Eisenmenger to a key decision maker before any investigation had occurred damaged the integrity of the process that was ultimately followed. The Church, LEQ and SPLC were all ill equipped to deal with the allegations against Pastor Eisenmenger. Those allegations related to his performance or conduct as a teacher. SPLC, on advice from Ms Webcke, commenced a performance review process that would normally apply to teachers. Pastor Eisenmenger was only informed of the process after the initial meeting where he was told of the allegations. However, after he had formally responded to the allegations on 5 December 2002, the process that had been advised to him was interrupted. The issues were no longer to be considered by SPLC but referred to LCAQD. The Commission was not informed of any disciplinary process that exists within the Lutheran Church for pastors who perform a teaching function. The disciplinary processes in the Church relate to the performance of religious duties. The absence of any specific process for pastors who have teaching responsibilities can only create confusion for a pastor who is the subject of the allegations and for senior staff within a school who may be responsible for collecting information relevant to the allegations and putting those allegations to the pastor concerned. Procedural fairness requires that the process used to investigate and respond to allegations be open and transparent from the outset. This was not. The process was made up by decision makers as they went along. The absence of any established process for considering allegations against pastors who are teachers makes it even more important that one be determined and made known to all relevant persons at the start and that it ensures procedural fairness. In my view the course of events shows that the process used to investigate and determine the allegations against Pastor Eisenmenger was compromised from the outset. Dr Muller by-passed the proper reporting process and went directly to Pastor Jaensch. His advices about Pastor Eisenmenger were not couched in terms of allegations but were reported as statements of fact. These actions together with the absence of any universally known pre-determined approach to investigating issues relating to teaching performance or conduct of a pastor leads to the inescapable view that the decision making process was compromised in terms of objectivity and transparency. The process was further compromised by the parts that were played in the process by Ms Webcke and Mrs C, the mother of one of the complainants, EC. On the advice of Ms Dunn, Pastor Eisenmenger contacted Ms Webcke before the first meeting on 28 November 2002 to clarify the purpose of her attendance. Ms Webcke informed Pastor Eisenmenger that she would be present to ensure that the processes of natural justice were followed. In her evidence Ms Webcke did not dispute that this was the advice she gave to Pastor Eisenmenger. However, it soon became clear that this was not her only role and that she was advising Ms Chandler and later advising Pastor Jaensch. Moreover, from her evidence, it was apparent that Ms Webcke drew adverse conclusions about Pastor Eisenmenger from the meetings she attended with him at the College. These conclusions coloured her perceptions and her advice. At the first meeting, two new allegations were put to Pastor Eisenmenger. These had not been previously notified to him. When they were put, Pastor Eisenmenger quite reasonably declined to respond. His decision not to respond was interpreted by Ms Webcke as evasion. In addition, Pastor Eisenmenger was described as being antagonistic. That is hardly surprising given the nature of the allegations and that two new ones were raised with him without warning. The perception of evasion also extended to the meeting of 5 December 2002 and it was at that meeting Ms Webcke formed the view that the response of Pastor Eisenmenger to the AB incident was not credible. These conclusions of evasion and antagonism influenced Ms Webcke to believe that the allegations concerning AB had substance and that he should be removed from the school. Ms Webcke proffered that view to Pastor Jaensch and Dr Hunter. Ms Webcke’s advice went further. During a teleconference on 20 December 2002 which included Pastor Jaensch and Ms C, Ms Webcke confirmed her view that Pastor Eisenmenger should be removed from the classroom and further, stymied a proposal by Dr Hunter that Pastor Eisenmenger work under supervision on the basis that it would be -- 8 of 15 -- 9 unworkable and Pastor Eisenmenger would be demoralised. Her intervention meant that the option was not considered further despite Pastor Eisenmenger indicating at the meeting of 5 December 2002 that working under supervision was a matter he would like to consider. Pastor Eisenmenger’s view was not conveyed to the teleconference participants. I accept that initially it was Ms Webcke’s intention to ensure natural justice was afforded. Not to inform Pastor Eisenmenger that her role had changed or been extended to provide advice about his position at SPLC compromised the transparency and integrity of the process. Mrs C was a member of the District Executive that decided that Pastor Eisenmenger posed an unacceptable risk to students and should be removed from the classroom. She is the mother of one of the complainants whose concerns gave rise to the third allegation. Despite the District Executive deciding to focus on the allegations concerning AB only and not the other two allegations as well, I cannot accept that Mrs C brought an unbiased mind to the decision making process. It was apparent that EC had spoken to her mother about her concerns with Pastor Eisenmenger from time to time and it was Mrs C who first raised her daughter’s concerns at the College Council meeting. Procedural fairness requires that a decision maker be independent and objective. Given Mrs C’s relationship with one of the complainants, I cannot conclude that she was an independent person in the decision making process. For all of these reasons I consider that the process was not objective and transparent and that as a consequence Pastor Eisenmenger was denied procedural fairness. Issues of fairness also arise in connection with the investigation into the allegations and the breadth of the third allegation. It is clear from the evidence that not all relevant people were interviewed by Mr Johnston in connection with allegation 2 in particular despite his recommendation. It is also evident that not all relevant information was put before the decision makers. After the meeting on 5 December 2002 between Ms Chandler, Ms Webcke, Mr Hennessy, Pastor Eisenmenger and his support person, Irene Dunn, a package of materials was forwarded to Pastor Jaensch. The package included Mr Johnston’s report and Pastor Eisenmenger’s responses to the allegations but importantly did not include the letter from Mr Gauld to Ms Chandler of 5 December 2002 wherein he advised of his discussions with the Year 8 Christian Studies class in which Pastor Eisenmenger was alleged to have punched MB. It is true that initially the DCC concentrated on the AB allegation alone. However, the other allegations were taken into account when a final determination about Pastor Eisenmenger was made. The crucial piece of information was denied to the decision makers when quite clearly it would have placed a different perspective on the matter. Further, the method of “investigation” into the third allegation can only be described as farcical. The investigation consisted of a student who had a complaint about Pastor Eisenmenger being asked to bring friends who shared her concerns to a meeting with Mr Hennessy. Of the two students who accompanied EC only one raised issues. No other meetings or interviews with students were held. The raising of these concerns resulted in an allegation being framed so broadly and so lacking in particulars that no person could reasonably respond to it. Although this allegation was not a major part of the case against Pastor Eisenmenger at any time his responses to and demeanour when dealing with the allegation coloured the judgement of some of those who were involved in the decision making process. These deficiencies lead me to conclude that the decision to terminate Pastor Eisenmenger’s appointment at SPLC was procedurally unfair. In addition to the above I consider that Pastor Eisenmenger was treated unfairly because the LCAQD was not prepared to accept the outcomes of independent processes established to develop a way forward. The events that are described below occurred after the decision to terminate his appointment was made and consequently are not matters that the Commission can consider in deciding whether the termination was unfair. However the decision by LCAQD to not act on the findings of the independent processes have compounded the unfairness afforded to Pastor Eisenmenger. They may also impact on the question of remedy. After the decision was taken by the District Executive it was confirmed by the full DCC on 23 January 2003. After some intervening representations, the DCC resolved to accept an offer from the College of Presidents to establish an independent review. Panellists for the review were drawn from Church positions in Western Australia, South Australia, New South Wales and the Australian Capital Territory. The following terms of reference were established. 1. (a) Were the grounds for the decision properly/clearly established? (b)Was the action taken appropriate? If a teacher had acted in this way, would it be grounds for dismissal? (c) Was attention paid to duty of care, both for the Pastor and the students? 2. A review of the process used from the point of view of natural justice. -- 9 of 15 -- 10 The Independent Review Panel (IRP) interviewed a substantial number of people involved in the matter including Pastor Jaensch, Pastor Eisenmenger, Ms Chandler, Mr Rudolph, Ms Webcke, Dr Hunter, Dr Muller, Mr Gauld and Ms Dunn. On the basis of the information provided to the IRP it concluded that: (a) The grounds for the decision were not properly/clearly established. (b) A teacher who had been involved in a single similar incident would not have been dismissed by the College. The report of the IRP was considered by the College of Presidents at its meeting on 3 and 4 July 2003. The College of Presidents decided that Pastor Eisenmenger’s position at SPLC had become untenable and that he should not be reinstated. Constitutionally the DCC has the final decision in relation to the termination of Pastor Eisenmenger’s position at SPLC. The DCC decided to affirm its previous decision. According to the evidence of Pastor Jaensch, the College of Presidents did not just consider the AB incident about which the IRP had reached its findings. The College of Presidents considered all three allegations and saw on the basis of the documentation a pattern of behaviour. It was decided that it was in the best interests of the students not to have Pastor Eisenmenger return to SPLC. One can readily understand the complaint of unfairness in relation to the above processes and outcomes. In this matter the DCC initially decided to only consider one allegation when three had been made. It is claimed that there were sound and cogent reasons for so limiting the decision but at the same time, according to Pastor Jaensch, the other two allegations had not been discounted. The aggrieved party agitated for and was successful in having an IRP established. The IRP was limited to the investigation of the one allegation, and after undertaking a detailed investigation and hearing from parties on both sides of the issue, found in favour of Pastor Eisenmenger. However, the College of Presidents was not prepared to accept the findings of the IRP on that one allegation and broadened the agenda to the three allegations, two of which had not previously been the subject of decision at least by the DCC. I accept that it was open to the College of Presidents to reject the findings of the IRP, however, their conduct, particularly in broadening the agenda after a finding in favour of Pastor Eisenmenger was made, leads me to question whether the process was entered into in good faith. I note however that after the decision of the College of Presidents the DCC asked the SPLC Council to consider whether it was possible for Pastor Eisenmenger to be reinstated. Despite the request, Pastor Jaensch said that the DCC “steadfastly maintained that the decision it made was a sound one and tried all possible ways to move Pastor Eisenmenger on from St Peter’s.”. The IRP was not the only process to be disregarded. As part of the conciliation process in respect of this application the parties agreed: 1. To appoint a psychiatrist who will conduct an assessment of Pastor Eisenmenger, and if appropriate in the eyes of the psychiatrist, will undertake counselling of Pastor Eisenmenger. 2. The parties will prepare a joint brief for the chosen psychiatrist. 3. The psychiatrist is to provide a report to both parties and in the event that the report is supportive of Pastor Eisenmenger working in a school environment then the Lutheran Church will support Pastor Eisenmenger to the extent possible in securing a call to another school in addition to the ongoing support already in place seeking to secure a call to a parish. The brief to the psychiatrist contained the allegations against Pastor Eisenmenger and the comment that the DCC had accepted the substance of the allegations. In particular, Dr Sundin was asked whether Pastor Eisenmenger would be able to respond in an appropriate fashion to the challenges posed to the teachers and supervising staff in a normal, unsupervised school environment. After interviewing Pastor Eisenmenger for approximately two hours, Dr Sundin responded that she found no evidence to suggest that Pastor Eisenmenger would not be able to respond in the manner described. Despite the assessment being part of an agreed process, the DCC declined to implement the agreed process. Pastor Jaensch said that “Pastor Eisenmenger may not have a medically recognised personality disorder but he still has a pattern of behaviour that warrants removal from the classroom.”. To reject the findings of one independent panel may be able to be explained, to reject the consequences of a second report when it is also a part of an agreed process to find a resolution is churlish. Both parties would have been aware of the benefits and risks associated with the process and must have carefully considered whether they were worth taking. While Pastor Jaench’s comments may be construed as accepting Dr Sundin’s medical assessment, the Church reneged on its agreement to be supportive of assisting Pastor Eisenmenger to return to a school in the event the report was supportive of him. The evidence clearly shows that the Church, through the actions of Pastor Jaensch, has actively worked against Pastor Eisenmenger securing another post in a school. In my view the actions of the Church in not -- 10 of 15 -- 11 accepting the outcome of the IRP and/or the agreed process following the report of Dr Sundin were unfair and unreasonable and compounded the procedural unfairness in the process that terminated his position at SPLC. Jurisdictional Argument The LCAQD contend that to establish jurisdiction Pastor Eisenmenger must first demonstrate that he was an employee of LCAQD. That is, he must show that there was a legal relationship between himself and LCAQD and the relationship was one of employment. LCAQD submit that there was no mutual intention to create legal relations with the Church and without that, there could be no employment relationship. For Pastor Eisenmenger, it was submitted that the existence of a contract of employment is not necessarily excluded by concurrent appointment to a religious ministry. These concurrent arrangements were in place in respect of Pastor Eisenmenger’s appointment to SPLC and his serving as a Pastor with the Lutheran Church. Both parties rely on the decision of the High Court in Ermogenous v Greek Orthodox Community of South Australia Inc. (2002) 209 CLR 95 to support their competing intentions. In that matter the High Court considered the case of an Archbishop of the Autocephalous Greek Orthodox Church in Australia who claimed long service leave and annual leave alleged to be due to him as an employee under a contract of employment with the Greek Orthodox Community of South Australia Inc. in respect of service as Archbishop. In that matter the High Court considered whether there was an intention to create legal relations between the parties. If that intention can be established then the next consideration is the type of relationship that was created i.e. employment or otherwise. The High Court found that a minister of religion may be engaged under a contract of employment to perform spiritual duties. There is no presumption of law in respect of the engagement of a minister of religion that the parties do not intend to form contractual relations. The Commission was taken at some length by the respondent to the Constitutions and By-Laws of the LCA and the LCAQD in an endeavour to show that there was no intention to create legal relations between the Lutheran Church and its ministers and Pastor Eisenmenger in particular. As Pastor Jaensch noted in his Statement of Evidence, the structure of the Lutheran Church is complicated. The following brief summary of the structure of the Lutheran Church is taken from paragraph 4 of Pastor Jaensch’s Statement. There is a national corporate body, the LCA. It is an incorporated body having been incorporated under the Associations Incorporation Act 1956 – 1965 of South Australia. The LCA has its own Constitution and By-Laws. Under the LCA Constitution, the Church is divided into Districts “for the promotion of its objects by its members in prescribed geographical areas” (see Article IX). The District established in pursuance of Church objects in Queensland is LCAQD (By-Laws, Section IX). LCAQD has its own Constitution and By-Laws, consistent with the requirements of the LCA Constitution (Article IX, clause 2). The LCAQD was incorporated under the now repealed Religious Educational and Charitable Institutions Act (Qld). No other Lutheran Church “body” has independent legal status in Queensland. SPLC, SPLC Council, LCAQD DCC and LCAQD DCC Executive all have recognised functions under the LCAQD Constitution but no legal status. LCA Constitution and By-Laws Under the Interpretation Section of the LCA Constitution terms are taken to mean the following in the Constitution and By-Laws unless the context or subject matter otherwise requires. “Pastor means any person ordained to the Holy Ministry according to the rites and practice of the Evangelical Lutheran Church who has been received into the Ministry of the Church according to Article V Clause 1”. The term “teacher” is separately defined to mean “any pastor or lay member called or appointed by the Church or any of its districts or congregations to serve on the teaching staff of a school or educational institution established and maintained by the Church or District or congregation”. For completeness, “lay member means any member of a congregation of the Church other than a pastor”. Article III of sets out the Objects of the LCA. Each object is of a religious and/or charitable nature. Article V deals with the Ministry and relevantly, at clause 1 provides that: “1. The Church recognises and upholds the Office of the Ministry as the office divinely instituted for the public administration of the Means of Grace. For the purpose it shall receive into its Ministry, by ordination or by colloquy of ministers ordained elsewhere, men whose qualifications for the office have been established, and who (a) accept and hold the Confession of the Church; (b) accept the Constitution and By-laws of the Church; and (c) undertake to participate in the work of the Church and to promote its Objects. Such members of the Ministry shall be recorded in the official Role of Pastors.”. Section V of the By-Laws deals in some detail with the Ministry. For present purposes, it is relevant to note the following provisions: -- 11 of 15 -- 12  Section V.B. establishes a Roll of Pastors. Members of the Ministry are recorded in the Roll of Pastors, and must be in one of the number of categories including at (c) “A pastor called or appointed by or on behalf of the Church or a District” and at (f) “A pastor temporarily without a call.”.  Section V.D. deals with Calls and Transfers. The Preamble of this Section includes the following: “. . . the calling of a pastor is not comparable with the purely secular procedures of employer and employee, but the acceptance of a call establishes a personal, spiritual, and holy relationship between shepherd and flock in the Church of our Lord Jesus Christ;”  Under clause 4 of Section V.D. of the By-Laws a regular call is said to constitute a permanent relationship which is terminable only by seven reasons. The LCAQD argue that the relevant reason here is that provided at (g), viz “inability to conduct the pastoral office efficiently in that parish in view of local conditions, without necessarily being a reflection on the moral and spiritual character of the pastor, subject to the provisions of the By-Law V.D. 17.”. (Note By-Law V.D.17 relates to pastors in full time non-parish positions). Clauses 7-10 of Section V.D. establishes the procedures in calls. Clauses 13-16 of Section V.D. deals with the Termination of a Pastorate. At clause 15 a process is established in cases where “. . . in the opinion of the President of the District, or the pastor, or the respective congregation/parish council or employing board, there are particular local circumstances significantly impeding the effectiveness of the pastor’s ministry, and where fraternal discussions between the pastor and the respective congregation/parish council or employing board and the subsequent pastoral advice of the President of the District/or the President’s nominee(s) fail to result in an effective resolution of the situation.”. LCQD Constitution and By-Laws The LCAQD Constitution and By-Laws establish the structure of the District and the functions of various offices and officials. In respect of the Ministry, it reflects in part, clause 1 of Article V of the LCA Constitution that the Office of the Ministry is the office divinely instituted for the public administration of the Means of Grace. Was there an intention to create Legal Relations? On the basis of the above, LCAQD conclude that both the express wording of the LCA Constitution and the implications drawn from the structure of both Constitutions confirm that the office of the ministry and a call are not intended to establish a legal relationship. As a matter of first impression it seems that the Constitutions and By-Laws evince no intention to create a legal relationship between a pastor and the church. The provisions that the Office of the Ministry being divinely instituted and the calling of a pastor not being comparable with the purely secular procedures of employer and employee lend support to the position advanced by LCAQD. However, as the majority in Ermogenous said: “[37] That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister’s conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no means follows, however that is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract …”. The majority then identified some aspects of the so called absolute proposition that the relationship between minister and church is pre-eminently or entirely spiritual in nature: “[38] First, although the proposition that the relationship between minister and church is pre-eminently or even entirely spiritual is couched in apparently absolute terms, it has been recognised that there are aspects of that relationship which may give rise to legally enforceable rights and duties. As was pointed out in Davies (73): ‘Until the applicant [in that case] was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustentation fund and to and to occupy his manse.’ (Emphasis added.) Secondly, the ‘essential spiritual’ character of the relationship may take on a different character when one of the parties to the arrangement (the putative employer) is not itself a spiritual body but is, as Staughton LJ said in Coker (74), ‘a school, or a duke, or an airport authority’ or, we would add, an incorporated body having the characteristics of the present respondent. To say that a minister of religion serves God and those to whom he or she ministers (75) -- 12 of 15 -- 13 may be right, but that is a description of the minister’s spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment.”. The applicant asserted that he had a dual role – that of pastor and teacher and it is the latter role which in effect creates a legal relationship. The respondent rejected this approach arguing that it focuses on the practical performance of the duties rather than the mutual intention of the parties. While consideration of the practical performance of the duties may impact on the type of contract once a contract is established, i.e. the second limb of the jurisdictional test, it cannot determine the first limb. The Constitutions of the LCA and LCAQD provide for both pastors and teachers. A teacher may be a pastor but a pastor is not necessarily a teacher. The Constitutions clearly contemplate that a pastor might have a dual role both as a teacher and a pastor. Those parts of the Constitutions and By-Laws that deal with matters relating to pastors would also apply to teachers who are pastors insofar as their pastorship is concerned. I was not taken to any specific provision in the Constitutions and By-Laws relating to teachers alone. The absence of any such specific provision leaves open the possibility that other than a spiritual relationship was intended to be formed with teachers, including a teacher who is a pastor and who receives a call to be a teaching pastor. In my view the decision of majority in Ermogenous opened up for consideration in cases involving the question of whether there was intention to create legal relations between a minister of religion and their church all aspects of that relationship and not just the spiritual aspect. Accordingly, I think it is open to the Commission to consider whether there are aspects of the relationship between Pastor Eisenmenger and the Church during his appointment at SPLC that may give rise to legally enforceable rights and duties. This necessarily involves consideration of the teaching component of Pastor Eisenmenger’s role. In his closing submissions Mr Murdoch SC listed the following as being relevant:  Pastor Eisenmenger is a qualified school teacher who at all material times was registered as a teacher with the Board of Teacher Registration;  Pastor Eisenmenger was regularly rostered to perform class room teaching duties as well as the associated teaching duties of preparation of lessons, assessment and the formulation of courses and curricula;  The subjects taught by Pastor Eisenmenger were Board subjects;  Pastor Eisenmenger performed playground duty and was involved in the extra-curricular activities of the College;  He was treated as part of the teaching staff and was a member of a teachers’ staff room.  Pastor Eisenmenger was paid a wage and paid tax;  For a time he received a free house and when that benefit was removed, a compensatory payment was made to him;  Consequent upon the termination of his appointment to SPLC, his pay by the Church came to an end. Mr Murdoch SC submitted that all of these elements were indicative of an employer/employee relationship. LCAQD relied heavily on the Letter of Call to support its contention that Pastor Eisenmenger had a call which anticipated the teaching and associated duties without need to establish a legal relationship. The Letter of Call confirms the election by the parish of SPLC of Pastor Eisenmenger as pastor of the parish comprising the congregation of SPLC. Under the LCA Constitution a parish can be a school. However, perusal of the Letter of Call shows that it contains generic duties and does not separately specify the types of teaching and associated duties that would be required to be performed by a teaching pastor in a school. In my view reference to such duties as “teach(ing) the Word of God” and “Provid(ing) and oversee(ing) the Christian instruction and nurture of the children and adults of the congregation(s)” fails to do justice to the specialised role of a teacher, albeit a teacher of Christian Studies. The position of a teacher in a school requires teaching qualifications to be held as well as the teacher being registered. Both of these are legal requirements. It seems to me that the Letter of Call sets out the religious or spiritual duties of the pastor and, except for the arrangements relating to remuneration and other conditions, does not deal with secular considerations. The evidence clearly shows that the bulk of the duties and functions performed by Pastor Eisenmenger at SPLC were those of a teacher and while he was performing those duties he was indistinguishable from any other teacher who would be engaged pursuant to a contract of employment. While performing his spiritual duties at SPLC his relationship with the Church may be pre-eminently or entirely spiritual in nature, however, when performing the duties and functions that any other teacher is required to perform, an employment relationship is in evidence. I also accept the submission of Mr Murdoch SC that it is indicative of an employer/employee relationship that as a result of the termination of his appointment at SPLC, Pastor Eisenmenger’s remuneration came to an end. This was not -- 13 of 15 -- 14 immediate as Pastor Eisenmenger went on study and other leave after being removed from SPLC but later the LCAQD decided to terminate his remuneration as a result of the termination of his call. Given these factors, I consider that he had a contract of employment and that such a contract was not excluded by concurrent appointment to a religious ministry. The question of who the employer is then arises. Is it LCA, LCAQD or SPLC? In my view the answer is LCAQD for the following reasons. Although SPLC paid Pastor Eisenmenger, reimbursement of his wages was sought from LCAQD. This was to take advantage of taxation laws. Consequently, it was the LCAQD which was responsible for the payment of Pastor Eisenmenger while he was appointed to SPLC and the decision to remove that payment. It is also noted that SPLC is not a legal entity. Moreover, it was the LCAQD that ultimately took the decision to remove Pastor Eisenmenger from SPLC. The evidence also showed that it was the LCAQD (through Pastor Jaensch) that involved itself in denying Pastor Eisenmenger any further teaching appointments. These are all actions consistent with those of an employer. Remedy Pastor Eisenmenger has sought reinstatement to his position as Chaplain and Pastor at SPLC. He argued that reinstatement was not impracticable. There is a new Head of College with whom he has had little interaction and evidence was given that there is substantial support from the teaching staff for Pastor Eisenmenger to be reinstated. LCAQD oppose the reinstatement of Pastor Eisenmenger to SPLC and further oppose his reinstatement or re- employment to any other school it operates. The opposition was predicated on a belief that Pastor Eisenmenger had not admitted to and addressed his anger management problem. Until that was done LCAQD could not be confident that Pastor Eisenmenger would not re-offend. Further, his behaviour had led to a breakdown in trust and confidence by the employing authority. In respect of SPLC in particular, evidence was given that the number of positions of pastor have been reduced since the termination of Pastor Eisenmenger’s appointment and no vacancies presently exist. The Head of College was concerned about the cost impost of Pastor Eisenmenger returning to the College when no budget allocation had been made. Section 78 of the Act requires that the Commission first give consideration to the reinstatement or re-employment of the employee. Only when the Commission finds that reinstatement or re-employment is impracticable is the Commission required to consider compensation. Neither Pastor Eisenmenger nor LCAQD addressed the remedy of compensation. The decision about remedy has caused me some difficulty. I do not have any difficulty with the proposition that Pastor Eisenmenger should be returned to a school. My concern is whether that school should be SPLC. On the one hand I am sympathetic to the submission that Pastor Eisenmenger should return to SPLC. Before the events of November 2002, he had an unblemished teaching record. The Church has a “12 year rule” that provides that a pastor should not spend more than 12 years in one parish. At the time that Pastor Eisenmenger was removed from SPLC he had spent 10 years there and he had not received any indication that he would not continue in 2003. Pastor Eisenmenger is 57 years old and there is merit in the proposition that he should be allowed to continue (and perhaps finish) his teaching career in the school where he has spent the majority of that career. In addition this has been a case where substantial support from his teaching colleagues exists for his return. It was apparent from his balanced evidence that the Head of the Middle School has regard for Pastor Eisenmenger and I am certain that no difficulties would arise between them were Pastor Eisenmenger to be reinstated or re-employed. There is also little “history” between the Head of College, Mr Rudolph, and Pastor Eisenmenger. I acknowledge that Mr Rudolph believes the second allegation to be true. However, Mr Rudolph presented as very experienced and professional. I consider that he would be able to accept this decision and work with Pastor Eisenmenger, bearing in mind also that their day to day contact would be limited. Against the argument that Pastor Eisenmenger should return to SPLC is the situation of the students who made the allegations and subsequently gave evidence against Pastor Eisenmenger. I believe that all remain students at SPLC but would no longer be in the middle school and hence no longer participants in classes likely to be taught by Pastor Eisenmenger. There is still the possibility of contact between the students and Pastor Eisenmenger during other school activities. I raise this as I am concerned about the welfare of the students who have had to endure facing the person they have accused in a court room only to have that person return to their daily environment. I hasten to add that I have absolutely no concern that Pastor Eisenmenger would intend them any harm but his presence may have unforeseen consequences for their emotional well being. I accept that no evidence was led on this point nor were submissions made in relation to it. Nonetheless I think it is a valid consideration in the circumstances. My concern is such that at this point I am not prepared to order that Pastor Eisenmenger be reinstated to SPLC. Rather, I consider that re-employment in another position that is available may be a more appropriate outcome. I do not know what, if any, positions are available. Accordingly, I propose to give the -- 14 of 15 -- 15 parties the opportunity to find a mutually acceptable resolution. They are directed to confer and to advise me in writing within 22 days of the date of release of this decision as to whether an agreement has been reached. A request for a Member of the Commission to chair a conference of the parties can be made to the Industrial Registry if they consider such assistance to be desirable. Should the parties be unable to reach agreement then I will relist the matter for the purposes of hearing further (new) argument about remedy, including reinstatement to SPLC in light of the concern I have identified. Before concluding this decision, I should address the issue of the breakdown in trust and confidence that was asserted by LCAQD. That breakdown stems from the allegations against Pastor Eisenmenger, the substance of which were accepted by LCAQD, and his refusal to acknowledge that he had an anger management problem. In relation to the first aspect the Commission trusts that LCAQD can now accept the findings of the Commission bearing in mind that it determined the extent of the evidence to be put before the Commission in support of its position. Concerning the second aspect, earlier in this decision I addressed the matter of the perception that Pastor Eisenmenger has anger management issues and concluded that such a perception was misplaced. I would recommend however that Pastor Eisenmenger undertake professional development with respect to classroom behaviour management. Such a course of action would go a long way to restore the confidence of all parties concerned. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2004 20, 21, 22, 23, 24 December 2005 20 January Appearances: Mr J. Murdoch SC instructed by Mr .M. Ryan (Ryan Kruger) for the applicant. Mr A. Horneman-Wren (Barrister) instructed by Ms S. Weingott and Mr J. Naughton (Allens Arthur Robinson) and with them Pastor T. Jaensch for the respondent. Released: 2 March 2005 Government Printer, Queensland The State of Queensland 2005. -- 15 of 15 --